R.M Auctions (Pvt) Ltd and Robert Mazirizing v Yaruka Investments (Pvt) Ltd

### Preamble
PAGE \* MERGEFORMAT 1
HH 520/25
HCHC821/24
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R.M AUCTIONS (PVT) LTD

and

ROBERT MAZIRIRI

versus

YARUKA INVESTMENTS (PVT) LTD

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

V. NDLOVU & MUSHURE JJ

HARARE, 5 June & 9 September 2025

Commercial Appeal

V. Mkwachari, for the appellant

S. Ushewokunze, for the respondent

MUSHURE J:

INTRODUCTION

This is an appeal against the judgment of the magistrates’ court handed down on 2 December 2024 in terms of which the respondent was granted summary judgment and the appellants were ordered to vacate number 386 Willowvale Road, Southerton, Harare.

BACKGROUND

The background facts of the matter may be summarised as follows: On 7 October 2024, the respondent issued a summons for the eviction of the appellants from a certain piece of land it owns, being Stand 386, Willowvale Township of Willowvale, situate in the district of Salisbury, and held under Deed of Transfer number 453/1996 (‘the property’).

It was the respondent’s submission that sometime in 2005, the appellants illegally occupied the property without its consent. Upon being confronted by the respondent, the appellants alleged that one Mr Mutyanda, who was neither the owner of the property nor the respondent’s shareholder or director, had sold the property to them or to one of them. The respondent asserted that since the time they illegally occupied the property, the appellants had been letting out the property or letting it to tenants without the respondent’s consent.

In defending the respondent’s summons, the appellants pleaded, in limine, that the matter was lis pendens. They averred that the respondent had filed a matter in the High Court under case number HCH 678/22, wherein it was seeking a similar remedy of eviction against the same parties, the appellants herein. On the merits, the appellants challenged the joinder of the second appellant as a party to the proceedings, arguing that the respondent had not pleaded a proper basis at law for his joinder. The appellants further denied that they were illegally occupying the property. The first appellant accepted that it had concluded a sale of the property with the said Mr Mutyanda who was purportedly representing the respondent. At the time, the first appellant, who was represented by the second appellant, was not aware that Mr Mutyanda did not have any authority to represent the respondent.

The appellants stated that they only became aware that Mr Mutyanda had no authority to sell the property in January 2006, following a police report at Southerton Police Station. They alleged that the respondent later sanctioned the first appellant’s occupation of the property when it sold the property to the first appellant. The appellants alleged, further, that they were possessing the property on the basis of an agreement of sale between the first appellant and the respondent. Thus, they insisted, the respondent effectively consented to the appellants’ occupation of the property by virtue of the respondent selling the property and giving the appellants vacant possession of that property.

Concluding that the appellants did not have a bona fide defence on the merits of the matter and had entered an appearance to defend solely for the purposes of delay, the respondent launched an application for summary judgment in the court a quo.

In finding for the respondent, the court a quo ruled that the matter was not lis pendens as case number HCH678/22 had been withdrawn. The court a quo also found that there was no proof of a second agreement or payment for the property. The court a quo was of the view that the appellants had not shown, on a balance of probabilities, a right of retention to the property; they had no legal claim, and that there was no possibility of a valid defence.

Aggrieved by the decision of the court a quo, the appellants noted this appeal.

GROUNDS OF APPEAL

Below, I quote the appellants' grounds of appeal verbatim:

“The court a quo erred improperly exercised its discretion and erred in law by granting the summary judgment application when the appellants had managed to prove an arguable defence. The court a quo’s decision in that respect is so outrageous in its defiance of logic or common sense that no reasonable court applying its mind to the facts could reach such decision.

The court a quo erred and grossly misdirected itself on the facts and law by failing to appreciate that the 1st Appellant had a right of retention arising from the verbal agreement of sale of the property in issue whose terms were established and constituted a triable issue.

The court a quo erred and misdirected itself in law by failing to appreciate that the 2nd appellant was improperly cited as a party without proper basis at law having been established”.

SUBMISSIONS BY THE PARTIES

At the hearing of the appeal, the respondent’s counsel, Mr Ushewokunze, made an oral application for leave to have the respondent’s supplementary heads of argument incorporated into the record. In response, Mr Mkwachari, appearing on behalf of the appellants, submitted that he was in a position to address the points raised in the supplementary heads of arguments orally, without the need for him to file any written responses to those heads. Consequently, we granted the leave sought, and the supplementary heads of argument were incorporated as part of the record.

In limine, the respondent contended that the first ground of appeal was not clear and concise, as it does not specify which segment of the court a quo’s decision is being challenged. It asserted that the appellants merely allege that the court a quo erred and improperly exercised its discretion in granting summary judgment, despite having an arguable case, which, the respondent submitted, is a blanket statement. It was the respondent’s contention that the claim before the court a quo was one of rei vindicatio, which admits of four possible defences. It was therefore insufficient for the appellants to merely assert the existence of an arguable defence without referencing any of the four defences upon which the appellants could rely.

The respondent submitted that it would have been prudent for the appellants to particularise the defence upon which they were relying. The respondent submitted, further, that it was not for the court to sift through heads of argument and determine which issue must be determined by the court. In the circumstances, the respondent contended that the ground of appeal had been clumsily drafted.

The respondent argued that the second sentence of the first ground of appeal sought to attack the factual finding of the court, but there appeared to be no attack on any finding of fact by the appellant.

In response, the appellants took the position that the first ground of appeal was clear and concise.  They stated that the finding of the court a quo was premised on the fact that the appellants had no bona fide defence to the claim, and this is the finding which the appellants were attacking. As such, the appellants argued, as far as summary judgment is concerned, the law required that a defendant establish a prima facie defence, which defence must be bona fide. In the circumstances, the appellants averred that they were at large to attack the finding by the court a quo that there was no prima facie defence.

On the merits, the appellants argued that the court a quo erred in its failure to consider that the appellant had raised a prima facie defence to the respondent's claim. They stated that there existed a verbal agreement whose terms were clearly spelt out. Further to that, there was letter of demand from the respondents' legal practitioners, wherein a demand for the purchase price was made, and attached cheques- all of which proved that there was an agreement of sale between the parties. The appellants submitted that it was irrational for the court a quo to determine that there was no agreement between the parties.

The appellants further contended that the oral agreement of sale established the right of retention of the property. Additionally, the appellants contended that they had raised the issue of improper joinder of the second appellant in the court a quo, but the court a quo had not determined the issue, and that constituted a misdirection which had the effect of vitiating the order given.

Per contra, the respondent stated that the entire notice of appeal did not have a ground that attacked the findings of fact made by the court a quo, particularly that there was no agreement of sale and that no payment was made. Mr Ushewokunze argued that a finding of fact had been made by the court a quo, and that finding of fact had not been challenged in the notice of appeal, and it was not brought for ventilation before this court. He further argued that a right of retention, as claimed by the respondent, is a lien and is a form of security. He submitted that this right is conferred by law on a person who is in possession of someone’s property on which he has expended money or money’s worth and therefore retains possession of the property until he has been duly compensated.

Additionally, he argued, from the record of proceedings in the court a quo, there was no claim or allegation that the appellants incurred any expenses for which they required or were claiming compensation from the respondent. He submitted that the appellants had quoted the principle out of context.

With regard to the citation of the second appellant, it was Mr Ushewokunze’s argument that the record showed that from the appellant's own pleadings, the appellant admitted to both of them being in possession of the property. In any event, he further argued, the net effect of an order granted against the first appellant specifically was the same, because even if the second appellant was to be excused from the proceedings, he could still be evicted from the property through the first appellant. He submitted that if the worry was that of costs being levied against the second appellant, the respondent would not pursue costs. Alternatively, this could court vary the court a quo’s order for costs.

ISSUES FOR DETERMINATION

I decipher the issues falling for determination in this appeal to be as follows:

Whether the first ground of appeal is clear and concise.

Whether the court a quo erred in failing to appreciate that the appellant had a right of retention to the property.

Whether the court a quo erred in failing to appreciate that the second appellant was improperly cited.

WHETHER THE FIRST GROUND OF APPEAL IS CLEAR AND CONCISE

Appeals from the magistrates’ court are governed by Order 31 of the Magistrates Court (Civil) Rules, 2019. O31 r(1) (4) (b) of those Rules states that:

“(4) A notice of appeal or cross-appeal shall state

….

In the grounds of appeal, concisely and clearly the findings of fact or rulings of law appealed against

…..

…..” [my emphasis]

The above rule mandates that a notice of appeal must contain grounds of appeal that are clear and concise. Failure to comply with the mandatory provisions of this rule renders an appeal a nullity.  See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S). If a ground of appeal is general and not specific, that particular ground of appeal cannot be a valid ground of appeal. See Chimaiwache v S SC 18-13 at p7.

Chikura N.O. & Anor v Al Shams Global BVI Limited SC 17-17 is authority for the proposition that a ground of appeal must raise real issues for determination that should be immediately ascertainable upon perusal of the grounds of appeal. It also states that the grounds of appeal must ensure that the respondent is properly informed of the case he has to meet on appeal. At p 4 of the cyclostyled judgment, the court makes the following pertinent remarks:

“In Sonyongo v Minister of Law and Order 1996 (4) SA 384, Leach J was dealing with an application for leave to appeal in terms of r 49(1) (b) of the Uniform Rules of Court of South Africa.  That rule required the grounds of appeal to be set out in the application.  The learned Judge at p 385E – 386A of his judgment said the following:

“I am not aware of any judgment dealing specifically with grounds of appeal as envisaged by Rule 49(1)(b); however, Rule 49 (3) is couched in similar terms and also requires the filing of a notice of appeal which shall specify ‘the grounds upon which the appeal is founded.’ In regard to that subrule it is now well established that the provisions thereof are peremptory and that the grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment, to inform the respondent of the case he has to meet and to notify the Court of the points to be raised. Accordingly, insofar as Rule 49 (3) is concerned, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves  the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet – see, for example, Harvey v Brown 1964 (3) SA 381 (E)at 383; Kilian v Geregsbode, Uitenhange 1980 (1) SA 808 (A) at 815 and Erasmus Superior Court Practice B1-356-357 and the various authorities there cited.

It seems to me that, by a parity of reasoning, the grounds of appeal required under Rule 49 (1) (b) must similarly be clearly and succinctly set out in clear and unambiguous terms so as to enable the court and the respondent to be fully and properly informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal. Just as Rule 49 (3) is peremptory in that regard, Rule 49 (1) (b) must also be regarded as being peremptory. In my view, the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice, but that is not the point – the point is that the notice must clearly set out the grounds, and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out. On this basis alone, the application seems to me to be fatally defective and must be dismissed.”

(The emphasis is mine)”

The jurisprudence coming out of this jurisdiction establishes that a ground of appeal must be specific as to which finding of fact or ruling of law made by the court a quo is being appealed against. Grounds of appeal will be bad if they are expressed widely, such that they leave the appellant free to canvass every finding of fact and every ruling of law made by the court a quo.

In casu, the ground of appeal deemed offensive reads as follows: -

“The court a quo erred improperly exercised its discretion and erred in law by granting the summary judgment application when the Appellants had managed to prove an arguable defence. The court a quo’s decision in that respect is so outrageous in its defiance of logic or common sense that no reasonable court applying its mind to the facts could reach such decision.”

One fails to make sense of the first sentence of this ground of appeal. However, it would appear that the appellants are attacking the court a quo’s exercise of discretion as well as the court a quo’s finding of granting summary judgment in circumstances where the appellants are of the view that they had an arguable case.

Therein lies the problem. For the appellants to simply state that they had an arguable case in the court a quo without stating what exactly was arguable would inevitably place the court in a position where it would have to sift through the record and identify what exactly was presented before the court a quo that can be termed as being arguable. I make these remarks conscious of the fact that the matter before the court a quo was one for eviction, which is based on the principle of rei vindicatio. As correctly pointed out by the respondent’s counsel, a claim for rei vindicatio is open to four defences. The case of January v Maferefu SC-14-20, lays out on p7 of the cyclostyled judgment the defences available for a claim of rei vindicatio in the following terms:

“There are basically four main defences to a claim of rei vindicatio which are:

that the applicant is not the owner of the property in question.

that the property in question no longer exists and can no longer be identified

(iii)  that the respondent’s possession of such property is lawful

(iv)  that the respondent is no longer in physical control of the property – See the cases

of Chetty v Naidoo (supra) and Residents of Joe Slovo Community v Thabelisha Homes 2010 (3) SA 454 (CC).”

I take the view that if one is to state that they had an arguable case against a claim for rei vindicatio, the expectation would be that one would be making an argument premised on the above-mentioned four possible defences. The appellant simply states that they had an arguable case in circumstances where four possible defences are in their purview. Consequently, the respondent is put in a position wherein it cannot anticipate what case it is supposed to meet or which part of the court a quo’s judgment the appellants are attacking.

The shortcoming in the first ground of appeal becomes more pronounced if one considers that the court a quo made a ruling addressing several points namely that the initial sale of the property by Mr Mutyanda was conducted without the requisite authority to sell it; that an agreement of sale had never been executed between the parties as is mandatory for transactions involving immovable property; that no payment was received for the property; that there was no agreement in which the respondent was a party; and that the appellants' defence to the respondent's claim was based on the existence of a second oral agreement of sale for the property yet there was no evidence supporting the existence of such an agreement.

It is therefore incompetent for the appellants to merely state that an arguable case was presented in the court a quo, without adhering to the required degree of specificity.  In my judgment, this would place them in an undesirable position where they are at large to argue every finding of fact and ruling of law made by the court a quo.

If my reading that the first part of the first ground of appeal relates to an improper exercise of discretion is correct, then that part too would suffer the same fate because it does not clarify how or where the trial court improperly exercised its discretion. It seems to me that this statement, incoherent as it is, has just been made as a matter of fashion. On the authority of Chikura N.O. & Anor supra, the manner in which the first ground of appeal has been crafted cannot be permitted. It is therefore my finding that the first ground of appeal stands to be struck off.

Sambaza v Al Shams Global BVI Limited SC3-18 at p 18, holds that a clear and concise ground of appeal cannot be disregarded because there are other defective grounds of appeal in the same notice of appeal. On this basis, I will therefore proceed to determine the remaining grounds of appeal.

WHETHER THE COURT A QUO ERRED IN FAILING TO APPRECIATE THAT THE APPELLANT HAD A RIGHT OF RETENTION TO THE PROPERTY

From my reading of this ground of appeal, the appellants seek to impugn the decision of the court a quo on the basis that it erred and grossly misdirected itself by ‘failing to appreciate’ that the first appellant had a right of retention arising from a verbal agreement of sale of the property, whose terms were established and ‘constituting a triable issue’.

I have issues with the wording of this ground of appeal. I have earlier on in this judgment related to O31 r4 (1) (b) of the Magistrates’ Court (Civil) Rules, which speaks to the requirement that the grounds of appeal must state concisely and clearly the findings of fact or rulings of law appealed against. I must state that the wording of this ground of appeal somewhat presents challenges, as it seems to speak to the trial court’s failure to understand or recognise that the appellants had a right of retention.

Be that as it may, Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd & Anor 2009 (2) ZLR 270 (S) at 273F-274C sets the circumstances under which the right of retention arises. The court states:

“The circumstances in which a person has the right of retention are clearly set out by Professor R H Christie in Business Law in Zimbabwe at pp 454-455, where the learned author states as follows:

“A right of retention, or lien, arises by operation of law from the principle that no-one should be unjustly enriched at the expense of another. A person who has incurred expenditure on the property of another, movable or immovable, and who is in possession of that property, is entitled to retain possession until paid sufficient compensation to prevent the owner being unjustly enriched at his expense. The amount of this compensation will depend on the circumstances. A possessor who has incurred necessary expenses, i.e. expenses which must be incurred to prevent the destruction or deterioration of the property, has a right of retention until paid the amount of his expenditure. This is known as a salvage lien, and it gives the possessor a real right against all the world. Useful expenses, i.e. expenses which have enhanced the market value of the property, give rise to an improvement lien, also valid against all the world, for the amount of the enhancement: Fletcher and Fletcher v Bulawayo Waterworks Co Ltd 1915 AD 636. The third type of lien, a debtor and creditor lien, is available to anyone who has, by contract, performed work or incurred expenditure on the property of another. It confers a personal right, available only against the other party to the contract (or third parties with knowledge of the lien), to retain the property until paid the contract price. …

A debtor and creditor lien gives no right of retention over other property of the debtor that is in the possession of the creditor (whether in pursuance of the contract or not) but on which he has not actually performed the work in respect of which he claims payment: Raymer & Co v Goldberg & Goldberg 1912 SR 167; Hotel Victoria (Rhodesia) Ltd v Alexander 1952 SR 35, 1952 (2) SA 637”

(emphasis added).”

The appellants state that their right to retention arises from the verbal agreement the first appellant had with the respondent and subsequent payment for the property. The court a quo found that there was no proof of the verbal agreement or the payment. The court a quo also found that the appellants had not even attached proof of purchase of the property. It found that the appellants had not shown on a balance of probabilities that they had a right of retention to the property.

It occurs to me that because of the wording of the second ground of appeal, that ground of appeal does not attack these findings of fact or rulings of law made by the court a quo. I am therefore persuaded by Mr Ushewokunze’s submissions that a finding of fact was made by the court a quo, but that finding of fact was not challenged in the notice of appeal.   This is because the appellants attack the court a quo’s alleged ‘failure to appreciate’ that the first appellant had a right of retention. A failure to appreciate is not a finding, nor is it a ruling of law.

In any event, the judgment of the court a quo does not support the appellants’ contention on the trial court’s alleged failure to understand because the court analysed the evidence before it and reached three conclusions which put the matter to rest namely, that there was no proof of the verbal agreement, that there was no proof of payment and that the appellants did not have a right of retention.  These have not been impugned in the second ground of appeal.  On this basis, the second ground of appeal fails.

WHETHER THE COURT A QUO ERRED IN FAILING TO APPRECIATE THAT THE 2ND APPELLANT WAS IMPROPERLY CITED AS A PARTY WITHOUT PROPER BASIS AT LAW HAVING BEEN ESTABLISHED

In my view, this ground of appeal suffers the same fate as the second ground of appeal. It is an attack on the court a quo’s alleged failure to ‘appreciate’ that the second appellant was improperly cited as a party without a proper basis at law having been established. I digress momentarily to comment that in their heads of argument and submissions before this court, the appellants purported to extend this ground to include the court a quo’s alleged failure to determine the question of the second appellant’s citation. This was inconsistent with the notice of appeal, and it was done without the appellants having sought to amend the third ground of appeal as it appears in the notice of appeal. Such a course of action is not only irregular but also unprocedural.

Reverting to the issue at hand, instead of motivating the ground of appeal as captured in its notice of appeal, the appellants concentrated on an issue which they had not placed before the court and bemoaned the consequent burdening of the second appellant with costs on a punitive scale. This was fatal to their appeal because, besides putting that ground as the third ground of appeal in the notice of appeal, no justification was laid before the court to support that indeed, the court a quo did not understand or ‘appreciate that the second appellant was improperly cited as a party without a proper basis at law having been established.’

Even if I were inclined to make a finding on the basis of the ground of appeal alone, I am not persuaded to find that the court a quo failed to appreciate that the second appellant was improperly cited. The court a quo’s judgment shows that the court was aware of the second appellant’s opposition on the basis of his being the first appellant’s agent. It went on to correctly analyse the objective of summary judgment proceedings, namely to enable an applicant with a clear case to obtain swift enforcement of its claim against the respondent and the requirements of the law for a respondent to successfully resist summary judgment. The court a quo noted the requirement for a respondent to disclose the nature and grounds of his defence, as well as the material facts upon which the defence is based, in a manner that would satisfy the court that the respondent has a prima facie defence to the action. The court a quo made the point that not every defence to the action can succeed in defeating an applicant’s claim.

The court a quo’s synthesis of the law accords with the law on summary judgment as established in a long line of cases decided in this jurisdiction: See for instance  Jena v Nechipote 1986 (1) ZLR 29 (S); Kingstons Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S); Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor 2010 (1) ZLR 227 (H) and Pepukai v Zimi 2020 (2) ZLR 263 (H).

The court a quo then went on to correctly analyse the position of the law with regard to eviction based on proof of title. Thereafter, the court a quo concluded that the appellants did not have a legal claim and that there was no possibility of a valid defence. The court a quo’s rulings of law have not been challenged in this appeal.

That said, I find no fault with the conclusion of the court, considering its analysis of the case, and additionally, that in paragraph 4 of their plea, the appellants, who were the defendants in the court a quo, submitted that

“…The plaintiff sold the property to the first defendant and the defendants are possessing the property on the basis of the said agreement….” [Emphasis mine].

The court a quo noted that the respondent’s claim was based on rei vindicatio. Against the backdrop of the appellants’ admission of being in possession of the property, once the court a quo established that the respondent owns the property and that the appellants’ possession was unlawful, the respondent was entitled to the relief it was seeking.

It is on this basis that I find that the third ground of appeal lacks merit.

MATERIAL DEVELOPMENTS POST HEARING OF THE ARGUMENTS

After we heard arguments in this appeal, we reserved judgment to consider the written and oral submissions that had been made. Before we handed down this judgment, the respondent wrote a letter to us, purportedly acting on the authority of Mhungu v Mtindi 1986 (2) ZLR 171 (SC). In the letter, Mr Ushewokunze sought to bring to our attention that the first appellant’s three cases filed in 2006 which were pending before the High Court, had been dismissed for want of prosecution. Mr Mkwachari has taken exception to Mr Ushewokunze’s conduct and rightly so.

The issue of those applications was never an issue before this court. It is irregular for Mr Ushewokunze to attempt to unprocedurally place a non-issue before the court under the guise of the court’s power to refer to its own records. Mr Ushewokunze’s conduct is not only unprofessional but highly unethical. It smacks of an improper but futile attempt to sway the court in a certain direction. Such conduct gravely undermines the integrity of the justice delivery system and cannot be countenanced. As a mark of my displeasure with the respondent, I decline to make an order as to costs.

DISPOSITION

As a result, I make the following order:

The first ground of appeal be and is hereby struck off.

The appeal be and is hereby dismissed in respect of the second and third grounds of appeal.

There is no order as to costs.

Mushure J: .............................

V. Ndlovu J: ............................. agrees

T.H Chitapi & Associates, appellant’s legal practitioners

Ushewokunze Law Chambers, respondent’s legal practitioners